Seanad Éireann debate -
Wednesday, 14 Nov 1973

Vol. 76 No. 1

Private Business. - Genocide Bill, 1973: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice (Mr. Cooney)

The purpose of this Bill is to amend the criminal law so as to enable this country to accede to the "Convention on the Prevention and Punishment of the Crime of Genocide" which was adopted by the General Assembly of the United Nations on 9th December, 1948. The text of the Convention is set out in full in the Schedule to the Bill.

"Genocide", as is well known, is the name given to the odious international crime which is defined in article II of the Convention. Article II reads as follows:—

"In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group;

(e) forcibly transferring children of the group to another group."

There is no need to add to this definition or to go into the background to the adoption of the Convention, except to recall that the preamble to the Convention refers to the declaration made by the General Assembly of the United Nations on 11th December, 1946, that "genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilised world".

It will be convenient to summarise next the articles of the Convention so far as is necessary for the purpose of the Bill.

By Article I the contracting states confirm that "genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish".

Article II, which I have already quoted, defines the crime of genocide, and Article III provides that genocide, together with complicity in it and with ancillary offences such as conspiracy, shall be punishable.

By Article V the parties undertake to enact the necessary legislation to give effect to the Convention and, in particular, to provide effective penalties for offenders.

Article VI provides for the trial of offenders. Trials are to be either by the Courts of the country where the offence has been committed or by such international penal tribunal as may have jurisdiction.

Article VII, which relates to extradition for genocide, is particularly important for the purpose of the Bill. It reads as follows:—

Genocide and the other acts enumerated in Article III shall not be considered as political crimes for the purpose of extradition. The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force."

The Convention came into force on 12th January, 1951, and up to now 78 countries have become parties to it including almost all the states of Western Europe.

In the Government's view it is very desirable that this country should accede to the Convention. Further delay might suggest that we are lacking in respect for the objects of the Convention. Any such idea would, of course, be utterly wrong. The only reason for the delay is that successive Governments felt difficulty about introducing the necessary legislation in order to give effect to the Convention.

There were two reasons for this. First, the very general definition of genocide in Article II lacks the precision at which our legislation aims when creating a new offence. Second, and more important, the requirement in article VII that genocide shall not be considered as a political crime for the purpose of extradition involves a departure from the strict rule in section II of the Extradition Act, 1965, which forbids extradition for a political offence.

The first difficulty, if it had stood alone, might have been avoided by not creating a new offence of genocide but relying on the offences in the existing criminal law. But owing to the requirement concerning extradition for genocide the Bill must, in any event, make special provision relating to genocide as such and, for this purpose, must include the substance of the definition of that offence in article II. However, the Government are satisfied that those possible difficulties should no longer be allowed to stand in the way of our accession to the Convention.

I shall now summarise briefly the provisions of the Bill.

Section I defines the expression "the Genocide Convention"by reference to the Schedule to the Bill, where the complete text of the Convention is set out. It will be convenient to have the complete text available in the same document as the Act.

Section 2 creates the offence of genocide as defined in article II and provides for the penalties. These will be the fixed penalty of imprisonment for life if the offence consists of the killing of any person and a maximum penalty of 14 years' imprisonment in other cases. These penalties will be high enough to accord with the obligation under article V to provide "effective penalties" for genocide. The section makes no provision as to the ancillary offences referred to in article III of the Convention, because, once genocide itself is made an offence, it will follow, in the ordinary way, that the other acts mentioned will also be offences. The section also requires the consent of the Attorney General for a prosecution for genocide and provides that trials shall be before the Central Criminal Court.

Section 3 relates to extradition. The section does not provide for liability to extradition for an offence of genocide, because this will follow from section 10 of the Extradition Act, 1965, under which offences punishable with at least one year's imprisonment are extraditable. It will, of course, be necessary, under section 8 of that Act, that an extradition agreement, or reciprocal facilites for extradition, should be in force between this country and the country seeking the extradition of the offender. Subsection (1) of section 3 provides that genocide and the ancillary offences mentioned shall not be considered as political offences for the purposes of the Extradition Act. The result will be that the prohibition in section 11 of that Act of extradition to other countries generally, and the corresponding prohibition in section 44 of endorsing a British warrant of arrest for execution in this country, if the offence is a political one will not apply to offences of genocide.

Subsection (2) of section 3 of the Bill provides that a person shall not be exempted from extradition for genocide or for an ancillary offence on the ground that, under the law in force at the time when, and in the place where, he is alleged to have committed the act in question, he could not have been punished for it. The subsection is not required, at least expressly, by any provision in the Convention, but it is included because of the possibility that a person might be wanted by a foreign country for genocide committed at a time when its government was itself pursuing a policy of genocide and therefore what he did had been made lawful by that government. Unless the subsection is included, the offender might be able to argue that extradition can be ordered only if the conduct in question was an offence at the time and place where it occurred. Section 3 also makes provision, in relation to the compulsory taking of evidence in this country for the purpose of foreign criminal proceedings, similar to the provisions as to extradition.

Sections 4 to 7 are technical. Sections 4 and 5 relate to courts-martial. Under the Defence Act, 1954, a person subject to military law who commits an offence against the ordinary criminal law is thereby guilty also of an offence against military law. Section 4 of the Bill provides that a person convicted of genocide by a court-martial shall be liable to the same punishment as in the case of a conviction before the Central Criminal Court. Section 5 excludes genocide from the jurisdiction of a limited court-martial and provides that no court-martial shall have jurisdiction to try a person for genocide unless committed on active service. Section 6 adds genocide to the serious offences in respect of which the procedure available under section 13 of the Criminal Procedure Act, 1967, where the accused pleads guilty in the District Court to an indictable offence does not apply; and section 7 of the Bill adds genocide to the serious offences in respect of which, by section 29 of the 1967 Act, a person may not be granted bail except by order of the High Court.

With this explanation I hope that the Bill will commend itself to the House.

Mr. E. Ryan

I have pleasure in welcoming this Bill. It is desirable that it be introduced, but it is regrettable that there was such delay in acceding to the Convention which, of course, was not the fault of the Minister. There were technical difficulties which had to be overcome. I am very glad that the Bill has now been introduced.

Genocide is a despicable crime which has rightly been outlawed by all civilised nations and which has been outlawed by this Convention. The Convention has been acceded to by most countries at the present time. The attempt by Nazi Germany to wipe out the Jews was probably the most appalling crime in history. It was appalling in particular because it was carried out in such a calculated and dispassionate way. Many people who remember it with horror are inclined to think that such a thing could never happen in the present day but that happened only a comparatively short time ago.

Unfortunately, there are things happening today in South Africa which are in many respects similar to what happened in Germany. The apartheid system, which has as its objective the victimisation of certain races in South Africa, is in many ways similar to what happened in Germany 30 years ago. What has happened and is happening in South Africa and Rhodesia at present is almost certainly something which would be an offence under the Genocide Convention. We should not be complacent about this. We should not feel that this is merely a theoretical Bill which may never be required. Unfortunately, atrocities of that kind are still going on and may go on in the future.

I welcome the definitions of genocide which have been included in the Convention. They embrace crimes which would not at first occur to one as being appropriate or as being things which should be considered rightly as an offence under the general heading of genocide. These are set out in Article II as

(a) killing members of a group, (b) causing serious bodily or mental harm to members of a group, (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent birth within the group; (e) forcibly transferring children of the group to another group.

Some of these are very obvious but some are not so obvious. It is good that the definition has been extended to include paragraphs (c), (d) and (e) of Article II. They might have gone further to include political, religious or cultural genocide. When this Convention was first discussed the Russians were in favour of including a definition to cover a situation where, although nobody was actually being killed or seriously injured, a deliberate attempt was made to eliminate their religious beliefs, their cultural background or their political beliefs and in that way to wipe out their identity.

The first sentence of Article II states:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such...

and then goes on to give the various categories I have mentioned. But the actual crime itself is the crime of attempting to destroy a group as such. If one attempts to wipe them out from the cultural point of view or as a religious or political group, then it follows that the group is wiped out if the attempt is successful. For that reason it is a pity that the definitions did not include this sort of situation when the Convention was introduced. This cannot be done under this Bill because we are merely deciding whether the Convention should be adopted and there is no possibility of putting down an amendment of that kind.

We should be aware of the kind of genocide I mentioned, because over the centuries an attempt was made to wipe out our religion, our cultural identity and thus wipe us out as a racial group.

Section 2 (3) of the Bill states that

Proceedings for an offence of genocide shall not be instituted except by or with the consent of the Attorney General.

Is this a wise or a necessary provision? A citizen should be able to proceed if he considers that a particular person or group is attempting to commit the crime of genocide. It must be realised that genocide is normally committed by a group and usually committed by some kind of establishment. An individual citizen does not wake up on a particular morning and say "I am going to commit genocide." He would be arrested for the first murder or attempted murder and that would end it.

From the practical point of view this is done by a group and if one considers the kind of situations to which I have referred in Nazi Germany, South undermining the whole purpose of the Bill, to say that proceedings can only Africa and Rhodesia, it seems to be inappropriate, and to some extent be instituted by or with the consent of the Attorney General. Almost certainly the Attorney General at the time will not move against the establishment. It may be far-fetched to suggest that any establishment in this country will commit genocide as defined in (a) or (b) of Article II. On the other hand, it states in paragraph (c)

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.

This is not likely to happen, but this Bill is designed to deal with far-fetched and unlikely events. It is conceivable that a group in this country, or even the Government of the day, might embark on a policy which would be extremely serious for a particular group even though they might act without realising the full import of what they were doing. Consequently, it should be open to a citizen to take proceedings, even if he is wrong in instituting proceedings, if he feels that a particular Government policy, or a particular policy by some institution or establishment in this country, is doing something which could be regarded as coming under one of the definitions in Article II of genocide, even though a relatively mild one.

It should not be necessary to have the consent of the Attorney General and there seems no particular reason to include this section in the Bill. Would the Minister in his reply consider accepting an amendment to eliminate this section?

Minister for Justice (Mr. Cooney)

I thank Senator Ryan for his contribution and acceptance of the Bill about which there can be no quibbling. It is regrettable, as he stated, that in this century, which is the most sophisticated century in the history of mankind, we have had within living memory some horrible acts of genocide and we have acts taking place at present in some parts of the world which appear to fall within the definition of genocide as contained in this Bill. It is a regrettable commentry on the limited advance of human civilisation that such things can happen.

Hopefully the existence of this Convention will limit any future activities in that undesirable regard.

As Senator Ryan pointed out, the definition is taken from the Convention and is a matter over which we now have no control. I was interested to hear his reference to the suggestion that we could commit cultural genocide. I can sympathise with the thinking behind wanting to have that state of affairs covered, but I can readily appreciate the legal difficulties in implementing it. The definitions followed in this Bill are taken, as I indicated, from the Convention and are not couched in the normally precise legal language with which we define crimes. This is one of the reasons why I would not be prepared to delete subsection (3) of section 2.

In addition, it is probable that an offence of genocide would be of an international character. It would be proper then that the prosecution would be taken by the Attorney General to mark national disapproval. This provision is similar to that in section 3 (3) of the Geneva Convention Act, 1962, as regards prosecutions for grave breaches of the Geneva Convention.

Senator Ryan made the point that genocide would probably be an establishment crime in the country where it was committed and that it would be unrealistic to expect it then to be prosecuted by the Attorney General, the law officer of that establishment. I would venture to suggest that, if the establishment is such that it condones or permits or in any way contributes to the commission of the crime of genocide, then it is most unlikely that it would be a regime that would permit an individual to institute proceedings. The present law regarding the institution of proceedings by persons other than the Attorney General is such that they are permitted to institute proceedings but in the case of an indictable offence, though they may be started by a private prosecutor, he can only conduct them in the District Court up to the point of return for trial. The filing of the indictment can then be taken only by the Attorney General.

I sympathise with the feeling behind Senator Ryan's suggestion, but I would put to him that it would not be practical, having regard to the international nature of the offence and the existing technical difficulties, for a private person to proceed beyond the District Court stage. For an offence of this magnitude the Central Criminal Court is the only apt venue.

Question put and agreed to.

Committee Stage ordered for next sitting day after Thursday, 13th November, 1973.